Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, August 28, 2015

John Goldberg on Helmholz, Natural Law in Court

John C.P. Goldberg, one of the leading tort and private law theory scholars writing today, has a terrifically interesting review here at The New Rambler of a new book by Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard Press, 2015). What Goldberg writes in his conclusion about the possible implications of Helmholz's recounting of natural law in legal history is especially rich for those working in Catholic legal theory. As Goldberg puts it, natural law (or merely lawyers' belief in natural law) might be like phlogiston theory in the history of science ("an account of how the widespread acceptance of a demonstrably false idea can contribute to the growth of knowledge"), just another discourse about law that has now been supplanted, or, perhaps, a still-relevant way of thinking about what law is: "once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology."

August 28, 2015 in Moreland, Michael | Permalink

Saint Augustine

10TolleLege
This heavenly city, then, while it sojourns on earth, calls citizens out of all nations, and gathers together a society of pilgrims of all languages, not scrupling about diversities in the manners, laws, and institutions whereby earthly peace is secured and maintained, but recognizing that, however various these are, they all tend to one and the same end of earthly peace. It therefore is so far from rescinding and abolishing these diversities, that it even preserves and adopts them, so long only as no hindrance to the worship of the one supreme and true God is thus introduced. Even the heavenly city, therefore, while in its state of pilgrimage, avails itself of the peace of earth, and, so far as it can without injuring faith and godliness, desires and maintains a common agreement among men regarding the acquisition of the necessaries of life, and makes this earthly peace bear upon the peace of heaven; for this alone can be truly called and esteemed the peace of the reasonable creatures, consisting as it does in the perfectly ordered and harmonious enjoyment of God and of one another in God. When we shall have reached that peace, this mortal life shall give place to one that is eternal, and our body shall be no more this animal body which by its corruption weighs down the soul, but a spiritual body feeling no want, and in all its members subjected to the will. In its pilgrim state the heavenly city possesses this peace by faith; and by this faith it lives righteously when it refers to the attainment of that peace every good action towards God and man; for the life of the city is a social life. City of God XIX.17

August 28, 2015 in Moreland, Michael | Permalink

Tuesday, May 26, 2015

Irish Catholicism and the Long Tail of Jansenism

The big story coming out of the weekend was the Irish referendum on same-sex marriage, accompanied by barely concealed glee in some quarters at the humiliation of the Catholic Church. Here’s a hypothesis to ponder about the historical reach of theological ideas and the place of Catholicism in different cultures (not so much about the substance of the same-sex marriage debate itself), even if it might not hold up in every detail to scrutiny.

As Damian Thompson writing at the Spectator notes here, the influence of Catholicism in Ireland has waned for various reasons (most especially the sex abuse scandal), and one factor he mentions in passing is “the joyless quasi-Jansenist character of the Irish Church.” Indeed, while the Church’s influence across Europe has fallen, the collapse in those parts of Europe (or places missionized by Europeans) arguably influenced by Jansenism has been ferocious: the Low Countries (we think of Jansenism as primarily a French movement, but Cornelius Jansen himself was Dutch and Bishop of Ypres), France, Quebec, and Ireland. The place of the Church in the culture of those parts of European Catholicism less tinged by Jansenism has fared a bit better: Poland, Austria, Bavaria, Italy, and, most especially, Spain and Portugal and their former colonies in Latin America and the Philippines.

I am simplifying a great deal here, of course. There was, for example, a robust Jansenist movement in parts of modern-day Italy, and, more importantly, it is hard to say how much Jansenist influence there really was in Irish Catholicism (captured by the “quasi-” in Thompson’s essay). Because of English persecution, there were no seminaries in Ireland up through the end of the eighteenth century and so Irish clergy were often trained at Jansenist French seminaries, and there might have been some Jansenist influence in the early days at Maynooth, the Irish national seminary founded in 1795. But the scope of the actual influence of Jansenist ideas on folk Irish Catholicism is much harder to determine, as Thomas O’Connor notes in his 2007 entry on “Jansenism” in The Oxford Companion to Irish History (“The frequent claim that Irish Catholicism was Jansenist-influenced springs from the tendency to confuse Jansenism with mere moral rigorism.”). Jansenism was just one (perhaps small) factor among many contributing to Seán Ó Faoláin’s “dreary Eden.”

If there is something to this, though, we shouldn’t be surprised. Jansenism—with its hyper-Augustinianism, insistence on human depravity, confused doctrine of freedom and grace, other-worldliness, and moral rigorism—was theologically pernicious (condemned in Cum occasione by Pope Innocent X in 1653 and in Unigenitus dei filius by Pope Clement VI in 1713). A Catholic culture shaped by it distorts our understanding of the human person and society, and bad theological doctrines about God, human nature, and sin can wreak havoc even if the institutional forms of the Church endure for a time. Jansenism produced a towering genius in Blaise Pascal and a minor genius in Antoine Arnauld, but it was an unfortunate development in early modern Catholicism. As we think about how to build (or re-build, as it may be) Catholic culture, we would do well to remember that joy is at the heart of the gospel, and a Catholic culture drained of such joy by Jansenism or its cousins will, when the time comes, all too easily be swept away.

May 26, 2015 in Moreland, Michael | Permalink

Friday, May 8, 2015

The Tories and Tradition

Benjamin Disraeli

Marc DeGirolami has called our attention to the importance of law and tradition (here and here, for example), which I was pondering last night as the Conservative Party exceeded all expectations and won a narrow parliamentary majority. Even if the British Conservatives aren't, in some respects, especially conservative (and after last night's wins by the Scottish Nationalists, not especially "British" but only English), the centuries-long enduring electoral performance of the Tories is one of the most remarkable features of Anglosphere politics. I have on my office wall two portraits: Thomas More and Benjamin Disraeli (with an autograph letter of Disraeli’s) for reasons that Russell Kirk once put well about the significance of shaping a political culture and its constitutional traditions:

Now what was it, in the ideas of Disraeli, that provided the Conservatives with spirit enough to recover from Peelism and to dominate a nation more heavily industrialized than any other in the world? What enabled the party of the country gentlemen to hold office well into the twentieth century, when they thought themselves irretrievably ruined in 1845? How did Disraeli’s theory of English history take shape as a political philosophy? The fascination of Disraeli’s personality, and the details of his long struggle against Gladstone, often obscure estimates of his accomplishment. When admirers of Lord Beaconsfield endeavor to sum up his achievements, sometimes one is confronted with a miscellaneous list of innovations--the Reform of 1867, the Factory Acts, aid to schools, commencement of a program of public housing--as if these were of themselves conservative measures. In truth, Disraeli's positive legislation sometimes was inconsistent with his theory, and in any case inferior to it. His really important achievement, as a political leader, was implanting in the public imagination an ideal of Toryism which has been immeasurably valuable in keeping Britain faithful to her constitutional traditions. The Primrose League mattered more than Suez. A foreigner who travels today through West Riding, say, from Leeds to Sheffield, or through any other densely-settled British industrial region, must be astonished that Conservative governments can exist in Britain. Yet many of the workingmen who live in these grim brick rows or in the monotony of the new council-houses vote for Conservative candidates; in the country at large, the Tories claim millions of supporters among the regular trade-union members, and many more among the laboring classes in general. Britain, which Saint-Simon thought ripe for proletarian revolution during Liverpool's ministry, was still Tory enough in 1951 to make Churchill prime minister and in 1986 to sustain a Tory lady in that office. Nowhere else in the modern world has a unified conservative party enjoyed such continuity of purpose and such enduring popular support. In great part, this is the triumph of Disraeli.

Russell Kirk, The Conservative Mind: From Burke to Eliot (7th rev. ed., 1986), 271.

May 8, 2015 in Moreland, Michael | Permalink

Wednesday, February 4, 2015

Jacob Levy, Rationalism, Pluralism, and Freedom

Speaking of new books, I was delighted to see that this book is now available from Oxford University Press. I've eagerly followed Jacob Levy's work for many years (this 2003 blog post at the Volokh Conspiracy when I was still in practice was my introduction to the important work of John Neville Figgis). I look forward to reading the book and will post on it when I do, but--based on the excerpts and conference presentations I've seen from it--I already know this will join (among others) John Inazu's Liberty's Refuge and Nancy Rosenblum's Membership and Morals as essential reading for thinking about associations, pluralism, and liberalism.

February 4, 2015 in Moreland, Michael | Permalink

Liberal Political Theory and the Family

This review by David Archard at the Notre Dame Philosophical Reviews of a new book by Harry Brighouse and Adam Swift raises a number of interesting questions about liberal political theory and the family. I look forward to reading the book, which Archard reviews quite favorably. I do think it would be important to think through carefully what the reviewer says in these passages I've quoted below about the framing of the initial question tackled by the book--there is an implication (or an outright assertion) that we have a sphere of justice (coterminous with/determined by the state or the Rawlsian "basic structure of society") into which we have to figure out where to fit the family, and that's a problem. This sits in considerable tension, I think, with a view of the family as a "society in its own right" (see Dignitatis Humanae, para. 5) or with the importance of the principle of subsidiarity in understanding the relation between the state and the family (see Familiaris Consortio, para. 45). But, as I say, the initial framing of the question makes such views all but impossible to entertain.

The problem for justice was, early on, neatly summarized by James Fishkin in the form of a ‘trilemma’: liberals are committed to three principles that cannot all simultaneously be realized. These are the rights of parents to choose for their children; a principle of equal opportunity; and a meritocratic principle governing the distribution of offices and jobs on merit. Fishkin thought the trilemma irresoluble, and others have tried to find a way out of the problem by the abandonment or trimming of one or more of the principles. It is nearly always the family that seems most in danger on these approaches.

....

After all, one response to a conflict of values is just to accept that the conflict is irresoluble and acknowledge that the best feasible state of affairs is one in which there will be some moral loss. On this account it is better to have the family than not to, but any society that does have families is not going fully to realize justice (and not merely realize justice as understood given the existence of the valued family).

February 4, 2015 in Moreland, Michael | Permalink

Thursday, January 29, 2015

More on the NLRB Decision in Pacific Lutheran

Over at the Law and Liberty site, Joseph Knippenberg has a post looking at the decision by the NLRB in the Pacific Lutheran case I mentioned here. A bit from his analysis:

First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.

This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.

Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.

January 29, 2015 in Moreland, Michael | Permalink

Thursday, January 15, 2015

Inviting Applications for the 2015 Libertas Project Summer Workshops

Libertas Header

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation. 

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants. 

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500. 

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom. 

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation. 

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available. 

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by March 1, 2015

PROJECT DESCRIPTION

The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom. 

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice. 

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom? 

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

January 15, 2015 in Moreland, Michael | Permalink

Monday, January 12, 2015

Walter Berns, RIP

The noted political philosopher and constitutional scholar Walter Berns died on Saturday at the age of 95. Berns wrote widely and perceptively about many issues, including and especially the First Amendment starting with his 1957 book Freedom, Virtue and the First Amendment. His writing on the religion clauses in his 1976 collection The First Amendment and the Future of American Democracy broadly (and presciently for the time) argued for a relaxed view of government aid to religion under the Establishment Clause and a no-right-of-exemption view of the Free Exercise Clause (he was quite critical of Wisconsin v. Yoder, for example). Indeed, in some ways Berns was an intellectual father of Employment Division v. Smith.

Berns's view that freedom of speech is at the service of cultivating a virtuous citizenry (and thus that cases such as Cohen v. California are wrongly decided) is widely rejected now, though one encounters a vestige of it in Justice Alito's dissents in Snyder v. Phelps and United States v. Stevens. Even those of us who agree with the now-dominant libertarian approach to freedom of speech, however, should appreciate the concerns that motivated Berns:

Morality cannot be legislated, we are told and have reason to believe, but the law can lend support to the moral dispositions of a people. Tocqueville had this in mind when he warned that the religion which had "struck its roots deep into a democracy" must be preserved, watched carefully "as the most precious bequest of aristocratic ages." The principle can be generalized to apply to all those decent habits that are required for self-government. Liberal democracies especially are limited with respect to the means they may properly adopt to generate these habits or moral dispositions, and it is therefore especially important that ours preserve those with which it began. The Supreme Court has not appreciated the role that law must necessarily play in this project. The First Amendment and the Future of American Democracy (1976), p. 228.

On a personal note, when I worked in Washington I lived in Chevy Chase not far from Berns, and I would frequently encounter him on the Metro red line after we had initially met at an AEI event on his book Making Patriots. We would talk about Iowa (he received his undergraduate degree from the University of Iowa), politics, and Supreme Court cases. He was a lively conversationalist and a grand public intellectual. Requiescat in pace.

January 12, 2015 in Moreland, Michael | Permalink

Monday, December 29, 2014

St. Thomas Becket and Magna Carta

Becket

Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2014 in Moreland, Michael | Permalink